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Another Favorable Opinion from the Supreme Court

Avi Garbow

Today’s Supreme Court decision is a resounding win for EPA. At issue was how certain Clean Air Act permitting programs apply to carbon pollution. Justice Scalia, writing for seven of the nine justices, largely upheld EPA’s approach to requiring that carbon pollution be addressed in permits for large emitters, such as power plants and refineries. As Justice Scalia reportedly noted from the bench, “EPA is getting almost everything it wanted in this case.”

EPA’s inaugural suite of carbon pollution rules have now been fully vetted in federal court, and have emerged victorious, and largely unscathed. In fact, the most significant pieces of the Agency’s approach were not even granted Supreme Court review, having been found sound and upheld by the D.C. Circuit. EPA’s scientific finding that carbon pollution endangers public health and welfare was upheld by the D.C. Circuit, and the Supreme Court denied cert on issues related to it. Similarly, the D.C. Circuit upheld EPA’s first set of rules limiting carbon pollution from cars and trucks (and simultaneously saving consumers money at the pump), and the Supreme Court denied cert on issues related to those rules.

Today’s decision focuses on several relatively narrow questions about two permitting programs. The minor points of disagreement in the ruling will not undermine our ability to protect the environment. The Court held that carbon pollution alone will not trigger a source’s obligation to get either a preconstruction or an operating permit. Practically speaking, the Court made permanent a temporary exclusion that EPA had already provided for small sources. The Court’s holding leaves in place EPA’s approach with respect to the vast majority of the carbon pollution inventory subject to the Act’s permitting provisions. And, importantly, this decision in no way affects the Agency’s ability to proceed under the Act to address carbon pollution from new and existing power plants: The EPA’s proposed Carbon Pollution Standards and recently proposed Clean Power Plan are the next important steps in the Agency’s effort to address climate change.

On balance, the benefits from the challenged programs remain in place, and EPA is pleased with the Court’s decision.

Here’s some more detailed information about the decision:

What does today’s decision mean?

EPA, states and tribal permitting authorities largely must stick with EPA’s current approach, which requires carbon pollution limits only in permits for the largest pollution sources.

Under the Court’s approach, the preconstruction permit program will cover approximately 83% of the carbon emissions inventory that would have been covered at the statutory threshold. (Under EPA’s rule reviewed by the court, 86% of emissions that would be addressed at the statutory level were covered).

Most sources that currently need to obtain a permit with carbon pollution limits would likely still need such a permit. This is because most of the big carbon pollution emitters (like power plants, refineries and other industrial sources) are also big emitters of non-carbon pollution.

Such an outcome allows EPA to free up limited resources to focus on other tools under the CAA as part of the President’s Climate Action Plan, like the recently released Clean Power Plan.

Today’s Supreme Court decision on permitting programs is unrelated to EPA’s Clean Power Plan to limit carbon pollution from power plants.

Both involve power plants and carbon pollution, but that’s where the similarities end. They concern two separate programs based on different provisions under the Clean Air Act.

EPA’s Clean Power Plan relates to a national standard-setting program authorized under section 111 of the Clean Air Act, which authorizes EPA, acting in conjunction with the states, to issue industry-wide standards to limit carbon pollution from power plants, refineries and other industrial facilities. That program was not at issue in the Supreme Court case.

In contrast, the Supreme Court case announced today is about two source-specific permitting programs authorized under sections 160 to 169 and sections 501 to 507 of the Clean Air Act.

It’s important to look at what is already settled and not at issue in this case:

In the case before the Supreme Court, there was very little left of the challenges to EPA’s inaugural suite of carbon pollution regulations because we had won on everything else.

It is clear from today’s decision that it is settled law that GHGs (or carbon pollution) are pollutants that EPA can regulate under the Clean Air Act. (That was originally decided in Massachusetts v. EPA.)

It is settled law that Clean Air Act section 111 authorizes EPA to issue national rules limiting carbon pollution from stationary sources such as power plants, refineries, and other industrial facilities. The Supreme Court relied on this interpretation of the Clean Air Act in an earlier case (American Electric Power v. Connecticut), and at oral argument, the lead industry attorney conceded this point. Thus, the legal authority underlying EPA’s June 2 power plant proposal is settled and was not at issue in the Court’s decision today. The courts affirmed EPA’s finding that carbon pollution endangers public health and welfare. (It was upheld by the DC Circuit opinion in this case, and the Supreme Court denied review.)

The courts affirmed EPA’s inaugural rules limiting carbon pollution from cars and trucks. (They were upheld by the DC Circuit opinion in this case, and the Supreme Court denied review.)

What was at issue in the Supreme Court case?

The issues in the Supreme Court case concerned three relatively narrow questions regarding how specific Clean Air Act permitting programs apply to and operate for carbon pollution. Other components of EPA’s overall efforts to reduce carbon pollution are not impacted by the Court’s decision today.

If a source needs a Clean Air Act preconstruction permit based on its emissions of non-carbon pollutants, does the permit for the source also have to limit carbon pollution?

Can a source’s carbon pollution alone trigger the requirement to get a Clean Air Act preconstruction permit?

Can a source’s carbon pollution alone trigger the obligation to get an operating permit under Title V of the Clean Air Act?

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